BVA9507555
DOCKET NO. 90-03 049 ) DATE
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RECONSIDERATION )
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On appeal from the decision of the
Department of Veterans Affairs Regional Office in Manchester, New
Hampshire
THE ISSUE
Entitlement to a total rating for compensation purposes based on
individual unemployability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. A. McDonald, Associate Counsel
INTRODUCTION
The veteran had active service from January 1967 to March 1970.
This matter comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from the Department of Veterans
Affairs Regional Office in Manchester, New Hampshire (hereinafter
RO).
This case was previously before the Board in August 1994, at
which time the issue of entitlement to a total rating for
compensation purposes based upon individual unemployability was
denied. This issue is now before the Board by Order for
Reconsideration of the Chairman dated February 1995 pursuant to
38 U.S.C.A. § 7103(b) (West 1991). The final decision on
reconsideration once promulgated, will replace the August 1994
decision as to the issue of a total rating for compensation
purposes based upon individual unemployability.
REMAND
The issue now on appellate review is entitlement to a total
rating for compensation purposes based on individual
unemployability due to service-connected disorders. 38 U.S.C.A.
§ 5107 (West 1991) requires the Secretary to "assist" veterans
who have submitted well-grounded claims in developing the facts
pertinent to the claim. Therefore, the VA has a duty to assist
the veteran in the development of facts pertinent to his claim.
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994).
When the Department of Veterans Affairs (hereinafter VA) is put
on notice prior to the issuance of a final decision of the
possible existence of certain records and their relevance, the
Board must seek to obtain those records before proceeding with
the appeal. Murincsak v. Derwinski, 2 Vet.App. 363, 370 (1992).
The Board notes that a VA orthopedic examination conducted in
April 1994 suggested that VA vocational rehabilitation should
evaluate the veteran. As any VA's vocational rehabilitation
determination regarding the veteran's condition bears directly
upon the employability status of the veteran for rating purposes,
the veteran's VA vocational rehabilitation file if existent, must
be obtained and considered in determining the issue of
entitlement to a total rating for compensation purposes based on
individual unemployability due to service-connected disorders.
Cherepanik v. Derwinski, 2 Vet.App. 176 (1992). Furthermore, the
Board notes that the veteran's representative has raised the
issue of Social Security Administration (hereinafter SSA)
disability benefits. Any records the SSA has pertaining to a
decision on the veteran's employability would certainly be
pertinent to his claim with the VA. See Collier v. Derwinski, 1
Vet.App. 413, 417 (1991); Ferraro v. Derwinski, 1 Vet.App. 326,
332 (1991). 38 U.S.C.A. § 5107(a) specifically states that the
VA's duty to assist includes requesting information from other
Federal departments or agencies as provided for in 38 U.S.C.A.
§ 5106 (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78, 82
(1990); Littke v. Derwinski, 1 Vet.App. 90, 91 (1990). Indeed,
the United States Court of Veterans Appeals (hereinafter Court)
has held that where the SSA has made a decision regarding an
issue before the VA, the record supporting that decision must be
secured. Masors v. Derwinski, 2 Vet.App. 181 (1992).
The Court has also held that the duty to assist the veteran in
obtaining all available facts and evidence to support his claim
extends to consideration of additional VA examinations.
Littke v. Derwinski, 1 Vet.App 90 (1990). The Court has stated
that the "fulfillment of the statutory duty to assist . . .
includes the conduct of a thorough and contemporaneous medical
examination . . . so that the evaluation of the claimed
disability will be a fully informed one." Green v. Derwinski, 1
Vet.App. 121, 124 (1991). Moreover, this duty includes an
additional VA examination by a specialist, when necessary. Hyder
v. Derwinski, 1 Vet.App. 221 (1991). The Board therefore
concludes that a VA examination by an orthopedist and neurologist
would provide a record upon which a fair, equitable, and
procedurally correct decision on the veteran's claim for
entitlement to a total rating for compensation purposes based
upon individual unemployability, can be made. 38 C.F. §§ 3.326,
3.327 (1994).
Under the circumstances of this case, the Board is of the opinion
that additional assistance is required to ensure that necessary
development of the issue of a total rating for compensation
purposes based on individual unemployability is accomplished by
the RO. Accordingly, this case is REMANDED to the RO for the
following actions:
1. Any VA and private medical records
subsequent to April 1994, should be
obtained by the RO and incorporated in the
claims file.
2. The RO should obtain the VA Vocational
Rehabilitation folder pertaining to the
veteran. If the veteran is receiving
Social Security Administration disability
benefits, the RO should obtain the SSA
decision awarding the veteran disability
compensation and all records on which that
decision was based.
3. The veteran should be afforded VA
orthopedic and neurologic examinations in
order to determine the severity and extent
of his service-connected disabilities. The
examinations should be performed in
accordance with the VA's PHYSICIAN'S GUIDE
FOR DISABILITY EVALUATION EXAMINATIONS. All
pertinent symptomatology, functional
limitations, and findings should be
reported in detail. The examiners should
also give an opinion as to the effect the
veteran's service-connected disabilities,
and the medications prescribed in the
treatment of said disorders, have on his
employability. All indicated studies
should be performed. The claims folder
must be made available to the examiners,
prior to the examinations, for use in the
study of the veteran's case.
Following completion of these actions, the RO should review the
evidence and determine whether the veteran's claim may now be
granted. If not, the RO should provide the veteran and his
representative with an appropriate supplemental statement of the
case and afford them a reasonable opportunity to respond. The
case should then be returned to the Board for further appellate
consideration.
JEFF MARTIN RENÉE M. PELLETIER
Member, Board of Veterans' Appeals Member, Board of
Veterans' Appeals
E. W. SEERY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).